NYLPI statement on the pending confirmation of Neil Gorsuch to the Supreme Court

NYLPI statement on the pending confirmation of Neil Gorsuch to the Supreme Court

After full consideration, New York Lawyers for the Public Interest (NYLPI) opposes the confirmation of Neil Gorsuch to the Supreme Court. Judge Gorsuch’s rulings raise serious concerns about his recognition of the civil rights of people with disabilities, individuals with health concerns, and immigrants, as well as the right to environmental protections for all.

NYLPI’s Disability Justice program works to advance civil rights and ensure equality of opportunity, self-determination, and independence for hundreds of people with disabilities every year. A review of Judge Gorsuch’s record shows that he has consistently ruled against the rights of such persons. By implementing a very narrow view of civil rights, Judge Gorsuch has found against children with disabilities subjected to repeat abuse in Muskrat v. Deer Creek Public Schools, 715 F.3d 775 (10th Cir. 2013), against employees with disabilities who require accommodations in order to work in Hwang v. Kansas State Univ., 753 F.3d 1159 (10th Cir. 2014), and against students with disabilities who need specialized placements in order to obtain the skills necessary for independent living in Thompson R2-J Sch. Dist. v. Luke P., 540. F.3d 1143 (10th Cir. 2008), among many others. Recently, a unanimous Supreme Court rejected Judge Gorsuch’s cramped interpretation of special education law in Endrew F. v. Douglas County School Dist. RE-1, No. 15-827 580 U.S. ___ (2017), making his rulings far outside the judicial mainstream.

NYLPI’s Health Justice program works to challenge health disparities and eliminate racial and ethnic discrimination and systemic and institutional barriers that limit universal access to healthcare. Judge Gorsuch’s record demonstrates he will side with corporations over people, and money over health, when it comes to healthcare. Judge Gorsuch is the author of the Tenth Circuit opinion in Hobby Lobby v. Sebelius, 723 F.3d 1114 (10th Cir. 2013), aff’d sub nom. Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014), which dramatically limited the Affordable Care Act’s contraception mandate. The opinion was ultimately upheld by the Supreme Court, but shows how Judge Gorsuch holds private companies’ interests over the health needs of individual women. Further, he joined the dissent in Little Sisters of the Poor v. Burwell, 799 F.3d 1315 (10th Cir. 2015) (dissenting from denial of rehearing en banc), arguing that the provision in the ACA that allows employers to opt out of the contraceptive mandate by filling out a form and allowing the employee, through their insurance company, to seek alternative access to contraception imposed an unfair burden on the employer’s freedom of religion.

NYLPI’s Environmental Justice program, which advocates to eliminate disproportionate environmental burdens in low-income and minority communities, is deeply concerned by Judge Gorsuch’s rulings that seek to shield polluters from challenges by citizens, as well as from government efforts to protect human health and the environment. He has voted to deny environmental groups access to the courts in Wilderness Society v. Kane County, 632 F.3d 1162 (10th Cir. 2011) and New Mexico Off-Highway Vehicle Alliance v. U.S. Forest Service, 540 F. App’x. 877 (10th Cir. 2013) (dissenting). Judge Gorsuch has questioned the longstanding principle of deference to agencies’ interpretations of their own rules, which would allow environmental bad actors to undermine an entire body of regulations designed to protect human health and the environment. For example, in Hydro Resources, Inc. v. EPA, 608 F.3d 1131 (10th Cir. 2010) (en banc), Judge Gorsuch allowed a mining permit in an area that the EPA had determined to be “Indian land,” overturning the EPA’s ruling and applying a narrow definition of “Indian land.” However, when deference to a government agency would benefit corporate interests, Judge Gorsuch has granted it, as in S. Utah Wilderness Alliance v. Office of Surface Mining Reclamation & Enforcement, 620 F.3d 1227 (10th Cir. 2010).